JUDICIAL REVIEW IN THE AUSTRALIAN FEDERAL
SYSTEM: ITS ORIGIN AND FUNCTION
Dr Galliganl examines the origin of judicial review under the
A ustralian Constitution through an analysis of th,e Conventions
and Conferences preceding its drafting. A political scientist, he
disputes the claim that there is no basis for judicial review in the
Australian federal system and argues that the intention of the
founders, influenced by Inglis Clark, was to create a powerful
American-style court primarily to interpret the Constitution in the
resolution of federal disputes. As a case study of the founders'
intentions he considers the debates and Hsolution" of the question
0/ control of Australia's inland river system.
The High Court is a powerful branch of the Australian federal
government. In a parliamentary system such as Australia's where the
efficient executive is, by the conventions of responsible government,
simply the leadership of the legislature, the judiciary provides the basic
institutional check on majority rule. The Court can disallow executive
and legislative initiatives that go beyond the limited powers of these two
branches of government. More importantly, the Court defines the limits
of federal and State powers and is the final arbiter in jurisdictional
disputes. By making key decisions at important moments of history, the
Australian High Court has k,ept the nation's dynamic political and
economic forces within constitutional limits: sometimes it has adjusted
the Constitution; at other times, as during the two world wars, it has
virtually suspended it; and quite often it has overruled challenging
legislation, forcing the challengers, frequently federal Labor governments, to moderate their objective and modify their policies. The
Constitution forms and moulds the political forces of the, nation. By
interpreting and applying the Constitution, the High Court is the active
agent in that process. Judicial review is a crucial part of the Australian
federal system.
In this article it is argued that judicial review was both intended by
the Australian founding fathers and is an integral part of the structural
logic of a federal system. The article examines the origin and function
of judicial review, not in terms of its exercise by the Court in striking
down Commonwealth and State legislation, but from an analysis of the
founders' design and intention and in terms of the structural logic of
the Constitution.
* B.Comm., B.Econ. (Qld), Ph.D. (Toronto); Lec.turer in Politics, La Trobe
University.
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Disputed Origin and Basis
Although judicial review is an established part of the Australian
Constitution, there is some dispute over its origin. The Australian cum
Canadian constitutional scholar, Edward McWhinney, has said:
So far as the institution of judicial review of the constitution exists
in the various Commonwealth Countries today as an effective
limitation on the claimed sovereign law-making powers of their
legislatures, it is a vestigial survival of the Privy Council's old
judicial hegemony in relation to the Overseas Empire, rather than
a direct derivation or borrowing from American constitutional
experience.1
This may be a correct generalisation of Canadian experience but it does
not hold for Australia. An article on the 1975 constitutional crisis
claimed more generally that "While the influence 'of American federal
theories is obvious in the provisions for sharing power between the
national and state governments, the document is above all a summary
of British experience".2 Australia's greatest judge, Sir Owen Dixon,
rejected the view that the predominant influence on the Australian
Constitution was British. Dixon claimed to belong to a court "fashioned
upon the model of the Supreme Court of the United States", and
described the Australian Constitution as "framed after the pattern of
that of the United States".3 Dixon was right, as we shall see directly.
There is also dispute over the basis of judicial review in the Australian
Constitution. Despite the fact that the High Court has been prominent
and active in deciding major political issues, it has never been seriously
threatened and has not had to justify its office. While judicial review is
a fundamental part of the Australian political system, judges have
usually taken their role for granted or appealed to the justificatory
reasoning of Marbury v. Madison~ as self evident and sufficient. For
instance Mr Justice Fullagar asserted in 1951 that "in our system the
'principle of Marbury v. Madison is accepted as axiomatic".5 These were
not empty words, as Fullagar J. was then sitting with the Court that
struck down legislation banning the Communist party even though the
anti-Communist legislation implemented a key plank of the Menzies
Government's successful election platform. Likewise Dixon maintained:
To the framers of the Commonwealth Constitution the thesis of
Marbury v. Madison was obvious. It did not need the reasoned
eloquence of Marshall's utterance to convince them that simply
McWhinney, Federal Constitution-Making for a Multi-National World (1966) 9.
Archer and Maddox, "The 1975 Constitutional Crisis in Australia" (1976) 14
Journal of Commonwealth & Comparative Politics 141, 147.
3 Dixon, "Two Constitutions Compared" in Jesting Pilate (1965) 100, 101.
4 (1803) 1 Cr. 137.
GAustralian Communist Party v. Commonwealth (1951) 83 C.L.R. 1,262.
1
2
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Judicial Review in the Australian Federal System
369
because there were to be legislatures of limited powers, there must
be a question of ultra vires for the courts.6
Legal commentators, for the most part, have followed the judiciary in
taking for granted the Court's most important political function.
Recently, Geoffrey Lindell pointed out that "many of the text books
and articles which deal with judicial review of legislation seem to
assume, rather than discuss in any great detail, the proper basis for the
doctrine of judicial review".7
Professor Lane is one leading constitutional scholar who has probed
the basis of judicial review in the Constitution and found it insufficient.
Lane says "I can find no express constitutional basis for such a
doctrine".8 He rejects the reasoning in Marbury v. Madison on the
grounds that it slides over from the ordinary role of courts to an
unproved federal role. Lane concludes: "Thus, the best that I can
offer as a basis for judicial review by the High Court is the historic
practice of the United States Supreme Court, the Privy Council and
pre-Federation Colonial courts."9 This is a rather vague foundation for
such a potent and crucial political procedure. Lane does acknowledge
that "what was introduced by history has now been sanctified by
prescription. Parliament and people throughout this century have
tacitly acquiesced in the role assumed by the High C'ourt in the
government of the Commonwealth".10 Professor Lane's position on
judicial review in the Australian Constitution can be summarised in
three propositions: ( 1) judicial review has no express constitutional
basis; (2) it was introduced by history and is now sanctioned by the
tacit acquiescence of the people and Parliament; and (3) it is a role
assumed by the High Court in the government of the Commonwealth.
If Lane is right the important function of judicial review has been built
on insufficient foundations.
In response to Lane, Lindell has argued that judicial review, and
moreover the duty of courts to exercise judicial review, is properly
bas,ed in law. Lindell's position relies on the common law role of judges
and "the general duty of a court to apply and interpret all laws",t1
including the Constitution. The extensive evidence that Lindell gleans
Dixon, "Marshall and the Australian Constitution" in Jesting Pilate 166, 174.
Lindell, "Duty to Exercise Iudicial Review" in Zines (ed.), Commentaries on
the Australian Constitution (1977) 150, 186. Controversy over the justiciability of
aspects of the 1974 double dissolution has given the question of the proper basis
and scope of judicial review an immediate practical relevance. This is discussed by
Zines, "The Double Dissolution and Ioint Sitting" in Evans (ed.), Labor and The
Constitution 1972-1975 (1977) 229.
8 Lane, The Australian Federal System (1972) 913. Geoffrey Sawer correctly
points out that the Australian founders had two great models in the United States
and Canadian Constitutions. Australian Federalism in the Courts (1967) 76.
9 Lane, Ope cit. 918.
10 Lane, Ope cit. 919.
11 Lindell, Ope cit. 183. Lindell's argument in support of judicial review is
essentially the same as that of Marshall.
6
7
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from English and Australian case law establishes that judicial review
has deeper roots in law than Lane acknowledges. Whether his argument
meets the main thrust of Lane's objection that judicial review is, in the
last analysis, a function that judges have usurped for themselves depends
on the view one takes of the basic character of the Australian Constitution. If the Constitution is essentially just another statute passed by
Westminster and deriving its authority from that source, then Lindell's
analysis that relies on common law principles of interpretation would
seem to be conclusive.12 If this is a legal "fantasy" and there is an
essential difference between the Constitution and an ordinary statute,
as Lane claims13 and I tend to agree, then the gap that Marshall sought
to bridge in Marbury v. Madison remains. Thus, in the author's view,
only a systematic study of the structural logic and original design of
the Constitution can properly substantiate judicial review and get
round the problem posed by Professor Lane.
As Professor Lane points out, Marshall's reasoning in Marbury v.
Madison does slide over from the ordinary role of judges to an unproved
federal role. Where the Constitution is silent, judicial proofs must beg
the question.14 Arguments can be advanced on behalf of the federal
executive, or legislature, or all three branches of government having
the right of interpreting the Constitution in matters that concern
them. The Court's deciding the question authoritatively in its own
favour already presupposes that the Court has the power of interpreting
the Constitution definitively. And that is precisely what has to be
established. As Alexander Bickel has pointed out, Marshall's proofs of
judicial review are "too strong; they prove, too much. Marbury v.
Madison in essence begs the question. What is more, it begs the wrong
question" .15
That Marshall's insufficient argument formally established judicial
review in the American federal system is proof of his political finesse
and mast1erly rhetoric. In the words of the American constitutional
historian, Robert McCloskey, "The decision is a masterwork of indirection, a brilliant example of Marshall's capacity to ... advance in one
direction while his opponents are looking in another."16 In their own
turn the Australian judges have been shrewdly discreet in relying on
12 Lindell argues that "the Commonwealth Constitution . . . derived its legal
existence by reason of the exercise of the Imperial Parliament's legislative powers.
. . . [and] that courts in Australia are required to perform the same duties in
relation to the Constitution as they are required to perform in relation to any
other kind of law in force in Australia." Ope cit. 165.
13 Lane, Ope cit. 915.
14 Although Lindell does not address himself to this particular issue, the way
he sets up his argument that the Court has a duty to exercise judicial review does
explicitly assume at the beginning that the Court possesses jurisdiction. Ope cit.
150.
15 The Least Dangerous Branch (1962) 2.
16 The American Supreme Court (1960) 40.
1979]
Judicial Review in the Australian Federal System
371
Marshall's authority or simply taking for granted their function of
judicial review rather than attempting to establish it by their own
proofs.
The reasons why judicial review was not spelt out in the various
constitutions are less clear. In the Australian case, as we shall see, and
probably also in the American, judicial review was implied by judicial
power and the paramountcy principle. We can speculate that there were
other reasons of political expediency and prudence. To spell out judicial
review would violate that discreet reticence which tends to disguise the
court's delicate political function and to enhance its ability to exercise
such a function. Judicial review is a political function, albeit of a
peculiar kind, and it is exercised by a legal body. That implies a certain
tension or contradiction. The court p,erforms the key function of
ensuring federal paramountcy in enumerated areas while at the same
time confining it to those areas. That is an absolutely crucial function
in a federal system. It cannot be given to either level of government,
national or State, because to do so would make that level superior over
the other and thereby destroy the federal balance. Moreover, the
adjudication of federal disputes is not left immediately to the p,eople,
save in the exceptional instances of constitutional amendments, because
the people are generally considered to lack the qualities necessary for
its proper exercise.17
Thus the court is given the important function of federal adjudication
for two reasons: negatively, because it cannot prudently be given to
any other body and so the court assumes it by default; and positively,
because the court possesses institutionalised attributes derived from its
legal character which fit it for such a role. Those attributes include
independence, learning, experience and reflection. The court's arbitral
role is a very delicate political power that has to be exercised in a
judicious manner. The court's legal characteristics tend to disguise the
political nature of the role and thereby remove it from a disputatious
and charged political atmosph,ere. The formal procedure of the court
tends to narrow the focus of the issue to a manageable, form. The full
ritual, sober dignity and calm deliberation of the court lend an air of
finality and objectivity that plays an important part in legitimating the
resolution. Judicial review removes a political disp,ute to a traditionally
non-political arena for resolution. Partisans are forced to transpose
their positions from the more passionate rhetoric of political dispute to
the neutral rationalisations of the law. In this indirect transposition and
calm resolution the exhilaration of the victor is considerably tamed and
the disappointment of the loser lessened.
The court then is the arbiter in federal disputes. That clearly is a
political function, so in this respect Lane is correct in describing the
17
Madison makes the classic argument for this position in Federalist No. 49.
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Court's role as government.1S But the court's role in constitutional
adjudication is not simply government. Its function is governmental or
political only in a special sense. The court cannot govern in the normal
sense of legislating about a general class of things, nor can it govern
with the flexibility of the executive in directing specific actions. Generally
speaking it can only decide disputes between parties that are brought to
it and that involve conflicting laws. In Alexander Hamilton's famous
words, the judiciary has "neither force nor will but merely judgment",
and is therefore the "least dangerous" branch of government.19
Since judicial review has no express constitutional basis, it is a truism
to say that it cannot be studied directly from the words of the constitutional text or from judicial decisions. But fortunately for judicial
review, those are not the only sources of constitutional truth. It does
not matter whether judges have given an adequate account of judicial
review, provided that the function can be shown to be an integral part
of the system's design and structural logic. There is ample evidence in
the federation debates and the theory of federalism to establish that
judicial review was not introduced by history, as Professor Lane claims,
but by the framers of the Australian Constitution who deliberately
followed the American model. Likewise judicial review was not assumed
by the High Court but was fully intended and clearly specified as an
integral part of the federal system. That judicial review is not spelt out
explicitly in the Constitution is not evidence to the contrary.
The Founders' Design and Intention
The Australian Constitution was the product of a protracted series of
constitutional Conventions that spanned the last decade of the nineteenth
century. The Australian founders grafted the American federal system
onto the traditional British executive of responsible government. T'hough
federalism was by then a mature and well-tried system of government
in North America, it was quite novel to the Australians. As Dixon has
pointed out, "In many respects the plan or scheme of government,
which we took from the United States and adapted to our B'ritish
system of ministerial responsibility, involved, not a development of
conceptions then current among us and familiar to us, but a departure
from them."20 The fundamental principle of dividing powers between
two autonomous levels of government and the corollary of a powerful
court to police that division were strange and novel doctrines for the
Australians who were nurtured and practised in the traditions of
parliamentary supremacy. The federation debates combined political
negotiation with an intensive learning process. The Australian founders
adopted the American formulation of judicial power and a federal court
at the beginning, but only gradually worked out their full implications.
18 Lane's chapter titled "Judicial Review or Government by the High Court",
Ope cit. 911.
19 Federalist No. 78.
20 Dixon, "The Law and the Constitution" in Jesting Pilate 38, 51.
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Judicial Review in the Australian Federal System
373
Presentiments, Melbourne 1890
From the very beginning of the federation discussions, it was, asserted
that the court would play a vital role in the federal system. At the
preliminary Melbourne Conference in 1890, when delegates made only
broad and tentative suggestions about the future federation, it was
becoming evident that the American Constitution would serve as the
model for the Australian, and that the proposed federal court, like the
American Supreme C'ourt, would have a larger-than-Iegal role. Alfred
Deakin, the youngest but one of the ablest and best-read of the delegates,
who was responsible for the first Judiciary Act thirteen years later,
recommended the adoption of an Am,erican-style federal judiciary.
Drawing upon Bryce's recently published American Commonw'ealth21
which he described as a first-class "text-book for the philosophic study
of constitutional questions" and a "magnificent work", Deakin explained
the essential characteristic of the American federal system. The central
government, he pointed out, acted "directly and immediately on every
citizen of the entire country" in certain specified powers. The judiciary
was an important organ of such direct central action. Deakin expressed
himself as "glad to think that we shall see a Sovereign State in Australasia which will be able to act directly through its judiciary, and in
other ways, on every citizen within its borders".22 Future Conventions
were to adopt Deakin's recommendation for an American-style system
and federal court, and to accept Bryce as an authoritative reference. 23
Andrew Inglis Clark, Attorney-General for Tasmania, spoke immediately after Deakin. He endorsed Deakin's recommendation for an
American-style court and spoke more generally about the character of
a federal union for the Australian colonies. Clark preferred "the lines
of the American Union to those of the Dominion of Canada".24 He
cited the Dominion veto power in the Canadian Constitution as a
method of amalgamation antithetical to the federal structure. Clark
predicted that the Canadian Provinces would be reduced to the status of
municipalities, a view that did not take sufficient account of the strength
of regionalism in C'anada and the remarkable juridical feat of the
Judicial Committee of the Privy Council in legitimating the turn-around
of the constitutional division of powers. Clark's evaluation of the
American system was more accurate. He attributed the cause of the
Civil War to slavery and not to any deficiency in the American federal
system. This analysis undercut the Canadian founders' reasons for
departing from the American model. According to Clark, the enviable
success and prosperity of the American nation were due to its federal
system. Local public life and regional differences of custom and industry
Bryce, The American Commonwealth (1888).
Federal Conference Debates (1890) 89, 91.
23 La Nauze, The Making of the Australian Constitution (1972) 273. La Nauze
records that Bryce's book lay on the official table throughout the proceedings of
the 1897-1898 Convention.
24 Federal Conference Debates (1890) 96, 106.
21
22
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were preserved within a strong national grouping. Since Australia had
the territory and potential for such national growth and at the same
time the regional differences and established colonial governments to
preclude a unitary system, Clark argued that they should adopt the
American federal system. He proposed American bicameralism as the
only way round the question of federal finances that Samuel Griffith
had raised as the principal difficulty in the way of federation. All in all,
the American system appeared tailor-made for the Australian colonies
in 1890.
Clark's Influence and the First Draft, Sydney 1891
Inglis Clark's influence on the formation of the Australian Constitution was profound. "[M]ore American than the Americans in his
admiration of American institutions", as Bernhard Wise described him,25
Clark was instrumental in moulding the broad lines, and especially the
judiciary sections, of the Australian Constitution to the American
federal model. Clark's role in the founding of the Australian Constitution has not always been properly appreciated, nor have the extent
and implications of the American political principles in the Australian
founding been fully realised. 26 No doubt the former partly explains the
latter. We can identify several reasons for this dual neglect. First,
Clark's influence on the federal Constitution occurred at the beginning.
He did not attend the second round of conferences in 1897-1898 that
finally produced the Constitution. Clark tended to lose touch with the
federal movement as federation approached. He actually opposed
federation in the 1898 referendum because he thought the financial
security of the smaller States was not sufficiently protected. He held no
public office in the new C'ommonwealth Government and narrowly
missed out on a seat on the original High Court. Moreover, Clark was
a shy man who avoided the public limelight; he was a man of ideas
rather than a leader of men. Secondly, the High Court's break with the
constitutional jurisprudence of the earlier Griffith Court in the famous
Engineers' Case27 in 1920 was a break with the old Court's close
identification with the American Court and American jurisprudence.
At that point the Court broke with its own origins and adopted a
rhetoric that has tended to obscure them.
Clark's role was better appreciated by his peers. Bernhard Wise, a
distinguished delegate to the 1897-1898 Convention where he was "a
Wise, The Making of the Australian Commonwealth 1890-1900 (1913) 74.
Important exceptions on whose work the author draws are Reynolds, "A. I.
Clark's American Sympathies and His Influence on Australian Federation" (1958)
32 A.L.J. 62; Neasey, "Andrew Inglis Clark Senior and Australian Federation"
(1969) 15:2 Australian Journal of Politics and History 1; and La Nauze, Ope cit.
23-28, 75-76.
27 Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd (1920) 28
C.L.R.129.
25
26
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Judicial Review in the Australian Federal System
375
member of the judiciary committee, gave the following glowing account
of Clark's influence:
No one in Australia, not even excepting Sir Samuel Griffith, had
Mr Clark's knowledge of the constitutional history of the United
States; and, when knowledge of detail is combined with zeal, its
influence on a deliberative body becomes irresistible. That our
Constitution so closely resembles that of the United States is due
in a very large degree to the influence of Mr A. I. Clark. His
speech at this Conference [1890] ... is interesting as containing
the germ of the ideas which dominated the Convention of 1891.28
Clark's was the predominant influence on the overall design of the
Australian Constitution. Other men such as the Convention leaders
Griffith (1891) and Barton (1897-1898) made greater practical
contributions towards shaping the instrument and having it adopted,
but Clark's influence on its general principles and structure was preeminent. Of course, in Samuel Griffith's words, the 1891 bill "was not
the work of anyone man. It was the work of many men in consultation
with one another".29 And the 1891 bill was itself only the blueprint for
the new beginning that was made in 1897. Moreover, as La Nauze
points out, Griffith was technically capable of doing what Clark did. But
the honour of first drawing up a Constitution to federate the Australian
colonies goes to Inglis Clark. Clark circulated his draft to leading
delegates before the 1891 Sydney Convention called to frame an
Australian Constitution.
As early as 4 July 1876, when Clark gave the presidential address to
a small group of devotees gathered at Hobart's Beaurepair's Hotel to
celebrate the centenary of the American nation, Clark had advocated
American principles. Those principles he declared to be "permanently
applicable to the politics of the world and the practical application of
them in the creation and modification of the institutions which constitute
the organs of our social life to be our only safeguard against political
retrogression".30 Clark had become a champion of Australian federation
at about the same time and naturally turned to American principles as
a basis for federating the Australian colonies. As we have seen, Clark
advocated the American model at the preliminary Melbourne Conference
in 1890. Later that year he made the first of three extended trips to the
United States, H a country to which in spirit he belonged, whose Constitution he revered and whose great men he idolized".31 There Clark
supplemented his extensive reading in American history and politics
with first-hand observations. He met leading Americans including
Oliver Wendell Holmes Jf, then a judge of the Supreme Court of
Wise, op. cit. 75.
Quoted La Nauze, Ope cit. 76.
30 Quoted Reynolds, Ope cit. 62-63.
31 Deakin, The Federal Story (1944) 30.
28
29
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Massachusetts, and began a lifelong friendship and correspondence
with him.
Returning to Australia, Clark prepared a draft Constitution that
embodied his beloved American political principles. Clark's draft32
closely followed the American model in its overall federal arrangement,
in the division of powers between federal and State governments, in its
bicameral legislature with Senate constituted by equal State representation and House elected by majority franchise, and finally in its strong
and independent federal judiciary. Clark retained the traditional formulation of executive rule by the Monarch through the Governor-General,
but left open the option of having the Executive Council or efficient
executive constituted either in the traditional form of responsible
cabinet government or in the American cabinet form. Clark's personal
preferences were republican and American, but the British tradition
was too deeply engrained to be directly challenged on this point.
Clark circulated his draft Constitution to influential delegates before
the 1891 National Australasian Convention in Sydney. Clark's draft
provided the Convention with a concrete plan that was significant in
focusing thinking and general discussion. It also provided the original
groundplan for Samuel Griffith's drafting committee.33 Clark's draft
Constitution played a similar role in the framing of the Australian
Constitution to that of the Randolph Plan in the 1787 American
Convention, although it was not directly debated. Despite a new
beginning to the task of drafting in 1897 and innumerable amendments,
the final Australian Constitution bears the stamp of Clark and embodies
the substance of his first draft and his beloved American principles.
Clark was active in the 1891 Convention as chairman of the judiciary
committee, as a member of the constitutional committee and of the
select three-man drafting committee. The real work of the 1891
Convention was done in special committees- constitutional, finance
and judiciary-after general discussion of broad principles had indicated
a general consensus sufficient for such detailed work. "In those few
days", report Quick and Garran, "Federation came down from the
clouds to the earth; it changed from a dream to a tangible reality. The
idea was once for all crystallized into a practical scheme, complete in
all its details."34 This statement overlooks the role of Clark's first draft
but it does capture something of the importance of the first official
drafting of a constitutional Bill. Clark was chairman of the judiciary
committee and dominated its work. He was deputed to draw up a set of
resolutions which he did by simply polishing up the judiciary sections
from his draft B'ilI. These were then submitted to the committee and all
Clark's draft bill is printed as an appendix to Reynolds, op. cit. 67.
La Nauze, op. cit. 76.
M Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) 129.
32
33
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Judicial Review in the Australian Federal System
377
accepted, but three of them only with the aid of Clark's casting vote.so
The constitutional committee reconsidered Clark's judiciary proposals
and the drafting committee rewrote them. Though a member of both
committees, Clark was absent with an attack of influenza when the
judiciary sections were recast. He was unhappy with the changes but
was apparently unable to do anything about them. As he acidly commented, "they altered all the clauses relating to the judicature ..." and
"messed it".36 Most of the changes, however, were stylistic ones. The
important exception was to substitute a Canadian-style formulation that
Parliament "shall have power to establish a Court" for the stronger
American expression, reverted to in 1897, that "The judicial power of
the Commonwealth shall be vested in a Federal Supreme Court".3'1
Despite a second reformulation in 1897, the judiciary sections of the
Constitution contain the substance of the American clauses and reflect
Clark's original draft. There are of course significant differences between
the Australian and American clauses: section 71 allows the Parliament
to invest State courts with federal jurisdiction; section 72(ii) adopts the
more traditional Canadian method of dismissing a judge after an
address from both Houses of Parliament;38 section 73 gives the Court
a more extensive appellate jurisdiction including appeals from State
Supreme Courts in matters of non-federal law; and parts of sections 73
and 74 deal with Privy Council appeals. Otherwise Article III, sections
1 and 2 of the American Constitution which are the charter of the
American Supreme Court are reproduced in slightly different form. 39
La Nauze points out that "The draft of 1891 is the Constitution of
1900, not its father or grandfather."40 Despite fairly extensive modifications in the several sessions of the 1897-1898 Convention, the form
of the 1891 Bill is apparent. As we have seen, the main lines of that
1891 Bill were sketched by Oark in his original draft proposal. As
author of the first draft Constitution and as chairman of the judiciary
committee in the 1891 Convention, Clark was instrumental in writing
an American-style federal court into the Australian Constitution.
There was little time for detailed discussion of the judiciary clauses
in 1891, but we can surmise from the development of the debate over
the Court in the 1897-1898 Convention that they were not fully understood or appreciated. The Australians adopted the stark formulations
of an American court through the instrumentality of Inglis Clark but
35 Proceedings of the Judiciary Committee printed in Federal Convention Debates
(London ed. 1891) cxxvi-cxxvii.
S6 Quoted La Nauze, Ope cit. 66.
37 Ch. 3, s. 1 of the 1891 draft bill in Federal Convention Debates (1891) 956,
and s. 71 of the final Constitution.
38 British North America Act 1867, s. 99 (1) .
39 For detailed comparison of Clark's bill and the U.S. Constitution, see Neasey,
Ope cit. 21-26.
40 La Nauze, Ope cit. 78.
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only gradually came to understand their full meaning. The next section
traces the evolution of that understanding.
Judicial Review Intended, Adelaide 1897
The 1891 draft Constitution "had been constructed in six weeks. It
was to be 'put by' for six years."41 The immediate cause was the
dramatic entry of the recently-formed Labor Party into New South
Wales politics in the June election of 1891. Labor won 36 of the 141
seats and held the balance of power. It traded support for concessions.
Labor's single-minded concern with social legislation at the Colonial
level was combined with an ignorance and suspicion of federation.
It seemed to the fledgling Labor Party that a new level of government
that was perceived to be undemocratic in its bicameralism and proposed
amendment procedures was being added just as Labor was beginning
to make inroads into the first level. As a result of Labor's entry into
politics, the attention and political skills of New South Wales politicians
were focused internally on Colonial matters. The other Colonies could
not proceed with federation while' New South Wales, the key to any
federal union, was absorbed in accommodating this new political force.
The federal cause was rejuvenated in 1897 and the first of three long
convention sessions began at Adelaide in the late summer. The 1897-1898
Convention was attended by delegates elected by the people of the
Colony rather than appointed by Colonial legislatures as in 1891. Many
new men were present and several of the old leaders did not attend.
The 1891 Convention leader, Samuel Griffith, was now Chief Justice of
Queensland, and Inglis Clark was absent because of illness and a second
recuperative trip to the United States. Armed with a new mandate, the
Convention made a new beginning, though the 1891 draft bill provided
an unofficial blueprint. Edmund Barton, who had stood in for Inglis
Clark when he was absent from the 1891 drafting committee, was
elected Convention leader and chairman of the constitutional drafting
committee. Barton was responsible for overseeing the debate on the
Convention floor and preparing successive drafts of the Bill, an immense
task that called forth all of Barton's great abilities.
As in the abortive Sydney Convention of 1891, the Adelaide
Convention began with a general discussion of broad principles, mainly
to hear the views of the new men who included three future Justices of
the High Court, O'Connor, Isaacs and Higgins. To focus discussion,
Barton presented a set of resolutions specifying the basic federal
principles that would be embodied in the new Constitution. These
resolutions stipulated that the Colonies and Colonial powers would
remain intact except that powers over defence, customs and trade
would be given over to the federal government. They proposed that the
federal government should consist of a bicameral parliament, responsible
411d.87.
1979]
Judicial Review in th,e Australian Federal System
379
government executive and a federal judiciary.a This of course was the
essence of the 1891 draft Bill.
What concerns us here is Barton's exposition of the federal court.
Detailed comment on the judiciary was largely absent from the 1891
record of the debates. Apparently B·arton saw the need to explain the
character and functions of the federal court at the very beginning of
this Convention.
Barton's resolution regarding the federal judiciary read: "There shall
be a Supreme Federal Court, which shall also be the High Court of
Appeal for each colony in the Federation." Like the formulation of the
judiciary sections in the Constitution, these brief words are deceptively
simple. What they implied was forcefully stated by Barton in his
explanatory speech.43 Barton thought the need for a federal court was
so obvious that he doubted whether more than one or two delegates
would oppose it. What was more to the point was the role of such a
court. In this respect Barton noted that most of those who discussed
the matter saw the court principally as a court of appeal. But for him
the court's appellate role was secondary to its role of arbiter in federal
disputes. Barton claimed that the "peaceful arbitrament of a Federal
Court" was the best means of holding the Federation together and
preserving the honor of the Constitution. In Barton's powerful rhetoric,
judicial arbitration was the alternative to negotiation and the final
"arbitrament of blood"."
Disputes between the States and between the federal government and
the States would invariably arise under a federal Constitution, predicted
Barton. He saw the federal court as providing "a continuous tribunal
of arbitration" where States could bring their differences. "The peaceful
and calm atmosphere of a court" would replace the "perturbed imagination" and "infuriated party politics" of the political arena. Barton
claimed that
One of the strongest guarantees for the continuance and indestructibility of the Federation is that there should be some body of this
kind constituted which, instead of allowing the States to fly to
secession because they cannot get justice in any other way, will
enable them to settle their differences in a calm judicial atmosphere."
Barton pointed out that giving the arbitral role to the court would
prevent the federal government's being a judge in its own case. Both
State and federal parliaments would be bound by the constitutional
division of powers and that would be policed by the court. This was
something quite novel to the traditional parliamentary system." It proved
42 Federal Convention Debates (Adelaide, 1897) 17.
43Id.24-25.
"Id.25.
45 Ibid.
46
Nineteenth century British jurists had so firmly entrenched parliamentary
380
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a hard lesson for the Australians to learn and was to be stressed over
and over again in the debates.
With the exception of Privy Council appeals, the judiciary sections of
the Constitution aroused little substantial controversy compared with
such contentious matters as finance and equal State representation in
the Senate. The judiciary committee of the 1897 Convention was the
smallest of the three committees and carried out its work with the least
trouble. Its resolutions were well drawn and went straight into the draft
Bill. This was in marked contrast to the controversial and vague
recommendations of the finance committee which were repudiated by
leading committee members on the Convention floor. 41 From its earliest
conception the federal judiciary enjoyed a certain apolitical status.
The judiciary sections were essentially a rewrite of the 1891 Bill
with a few important exceptions. At the instigation of a delegate from
impecunious Western Australia, the novel expedient of investing State
courts with federal jurisdiction as an alternative to creating subsidiary
federal courts was added. This change was first cleared by wiring
Samuel Griffith48 who, along with Inglis Clark, was now a respected
authority on federal matters and continued to exert a powerful influence
on the Convention in absentia. A far more significant change was to
reinstate Inglis Clark's original intention of entrenching the Court into
the Constitution rather than leaving its creation to Parliament's discretion, a change with which Clark was reported to be "flattel"ed".49
The most blatant disagreement regarding the judiciary was over
retaining the Privy Council as an appeal court. The majority, including
all the eminent lawyers in the Convention, was adamantly committed
to establishing a powerful Australian court as the final court of appeal.
A vocal minority supported retention of Privy Council appeals, making
pompous appeals to monarchic and imperial sentiment. They were
strongly supported outside the Convention by a mixed alliance of
powerful interests that included the British Colonial Office, a group of
colonial Chief Justices and retired judges, and wealthy English corporate
investors who distrusted the impartiality of an Australian court as a
safeguard for their colonial investments.50 The debate was often quite
heated with the Convention leaders giving short shrift to the arguments
of the pro-Privy Council faction and making disparaging remarks about
sovereignty as a pivot of the legal system that British settlers in Australia and
Australian lawyers and politicians were inclined to attribute such sovereignty to
their Colonial Parliaments, even though it belonged strictly only to Westminster.
See Dixon, "The Law and the Constitution" in Jesting Pilate 38, 45, SO-51.
Federal Convention Debates (Adelaide, 1897) 432, 448-453.
La Nauze, Ope cit. 130-131. It became s. 71 of the Constitution.
Quoted from the Hobart Mercury (29 July 1897) in Scott Bennett, The Making
of the Commonw'ealth (1971) 166.
50 La Nauze, Ope cit. 173, 220-221, 248-249. Also Higgins' speech Federal
Convention Debates (Adelaide, 1897) 988.
47
48
49
1979]
Judicial Review in the Australian Federal System
381
the quality of the Privy Council.51 One of the best arguments used
against retention of the Privy Council was that it would have no
competence in Australian constitutional cases since it would lack an
intimate knowledge of Australian history and local conditions. 52 The
force of this argument depended on the fact that constitutional questions
were not abstract legal matters that could be decided by a foreign legal
body. The attempt to reinstate Privy 'Council appeals at this stage failed
by a majority of two to one.
Our main concern, however, is not with the formulation of the
judiciary sections which, with the few exceptions noted earlier, remained
virtually the same as in 1891. It is with the Convention's understanding
of judicial review. Judicial review was not spelt out as such in the
constitutional text and so was not directly debated in 'Convention, but it
was a dominant theme constantly recurring throughout the debate on
the judiciary clauses. The bald formulations of the text need to be
fleshed out with the substance of the debates if we are to appreciate
the design and intention of th'e founders in this matter.
It is quite clear from the debates that the founders intended to
create a strong, American-style court that would be an independent
branch of government and exercise judicial review over both State and
federal legislation. Convention leaders Barton, Downer, O'Connor and
Kingston along with judiciary committee members Symon, Wise and
Glynn dominated the debate and all supported a strong judicial power.
Trenwith, the sole Labor delegate, was no exception and gave one of
the best accounts of the court's role in the federal system:
We are creating a Constitution in connection with which we are
fixing all kinds of matters for protecting State rights; but, whatever
we do, unless we provide a competent tribunal to act as custodian
of the Constitution, the people will have doubts as to whether the
Parliament will exceed the powers that were intended by the
Constitution, and thereby curtail the State rights about which we
are all so anxious. We want to create unification in a central body
for specific purposes, but we are extremely anxious that the
central body shall deal with nothing else but what we submit to it.
Therefore, we shall have a strong and dignified custodian of the
Constitution. 53
The founders were quite clear that they were establishing the court
as an independent branch of government. In heading off a proposal to
delete the requirement setting the minimum number of judges at five,
51 See for example Federal Convention Debates (Adelaide, 1897) 969-973, 981.
Also Federal Convention Debates (London ed., 1891) cxlii-cxlviii, for Inglis Clark's
defence of a local court that was final.
52 Federal Convention Debates (Adelaide, 1897) 987. See also Barton's subsequent
statement that "if Australia is to be the maker of its own Constitution, it is fairly
competent to be the interpreter of its own Constitution". Federal Convention
Debates (1898) Vol. 2, 2330.
63 Federal Convention Debates (Adelaide, 1897) 940.
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Bernhard Wise stressed that the whole object of the judiciary committee
had been to "make the High Court in all essential parts independent of
Parliament".54 He warned that in future controversies between parliament and the court it was imperative that parliament not have the
power of dismissing judges.55 Wise advocated a powerful court with a
sufficient number of judges to command the respect both of the
legislature and the State Supreme Courts. The judiciary committee
chairman, Symon, went further and claimed that the federal principle
was to "make the judges of the High Court once appointed, irremovable.
The High Court in its position should be equal to, if not above, the
Parliament and Executive."6G
The draft Bill as it emerged from the special committee had entrenched
the court in the Constitution, reversing the 1891 Bill in this important
respect. Now the Convention sitting as a committee of the whole
adopted Kingston's amendment for strengthening judicial tenure. Where
previously judges could be removed by the Governor-General after an
address from both Houses of Parliament, now the conditions of "proved
misbehaviour or incapacity" were added. Kingston's purpose was to
"preserve intact the absolute independence of the judges, both in
relation to the Federal Executive and the Federal Parliament" .57
Glynn, who firmly supported him, had drawn attention to the lag in
political complexion of the court which made it especially vulnerable to
political disfavour from the legislature. He cited the early American
experience and the attempted impeachment of Justice Chase in 1803 to
demonstrate the kind of political pressures a federal court might have
to withstand. 58
The most significant difference of opinion regarding the court was a
division within the majority who favoured a final court of appeal in
Australia. The difference was over the character of such a court and
throws light on subsequent jurisprudential changes. by the court. Isaacs
and Higgins preferred to stay closer to the English legal tradition, with
the court restricted to a narrower scope in its legal interpretation. Their
view is important because it is in germ the view that became dominant
on the High Court after 1920. It was also significant because it called
forth strong statements from the others regarding the intended
character of the court and of judicial review.
Higgins spoke and voted against the majority over retaining a
specified minimum size for the court. He admitted there were very
strong reasons for having a court of five justices but held that it was
properly a matter for the future legislature to decide. 59 Isaacs tried
54
Id. 935.
so Id. 935-936.
HId.
l'IId.
.58 Id.
69Id.
942.
947. The amendment became s. 72(ii) of the Constitution.
944-947.
938-939.
1979]
Judicial Review in the Australian Federal System
383
unsuccessfully to have the B·ritish law regarding removal of judges
retained. He ably explained that under such a law a judge could be
removed for two reasons: first, if he were guilty of misbehaviour; and
secondly, if the parliament wanted him removed for its own good
reasons. Isaacs stressed that in the latter case it was Parliament's
opinion of the matter which was to be paramount. Since this procedure
had worked well in the British Constitution for two centuries without
abuse, he advocated its retention.GO Higgins supported him: "I hope we
shall adhere to the British Constitution so far as we can", he said,
"because we are more used to it."61
Such a stance by Isaacs and Higgins stirred the others to strong
statements in support of their preferred American-style court. Symon
was quick to take issue with Isaacs. The position of judges under the
British Constitution was well known to the Convention, he said, but
they were creating a federal system that was closely modelled on the
American Constitution. Symon claimed that Isaacs did not discriminate
sufficiently between a unified state and a federation; what applied to
one did not apply to the other. In support of his case, Symon approvingly
quoted Hamilton's strong argument from Federalist No. 78. In the
passage he quoted, Hamilton argued for permanent tenure for judges
because the courts were the "bulwarks of a limited Constitution against
legislative encroachments". Symon called the court "the keystone to
the federal arch". 62
Backing up Symon, Barton claimed that the Canadian model of the
court should not be followed. Canada, he said, had neither a true
federation nor a true union: it was "a mongrel between both". Barton
had in mind the centralising mechanism of Dominion veto over
Provincial legislation which was an alternative to judicial review by an
independently entrenched court. Since they were creating a proper
federation, argued Barton, they needed a strong and independent court.
Barton's account of what judicial review would be in the Australian
Constitution was essentially a combination of Hamilton's 78th Federalist
paper and Marshall's opinion in Marbury v. Madzson:
The Federal Judiciary must be the bulwark of the Constitution. It
must be the supreme interpreter of the Constitution, and it is not
true that in the United States the Supreme Court is above th,e
Constitution, and the Parliament below it. That is the way in
which the matter has been stated by Englishmen who have not
thoroughly studied the question. The truth of the matter is this, as
laid down in the American Constitution in few and stately words:
This Constitution is the supreme law of the land. . . . When the
Federal Judiciary or the Supreme Court of the United States has
60 Id.
947-949.
GlId.953.
62Id.950.
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384
[VOLUME
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confided to it the maintenance of the Constitution, which is
confided to it by that very phrase, the settlement of any question
in which Parliament makes an attempt to transgress the law of the
land comes within their jurisdiction. Acrimony may arise between
the Parliament and the Supreme Court, and we have to ensure
that the judges shall not be removed upon the occurrence of that
acrimony.63
Quoting his colleague O'Connor in a follow up speech, Barton stated
that the most important questions the court would have to decide
would be "between the States and the Commonwealth, the validity of
State laws, and the validity of Commonwealth laws which may overlap
or override them"."
Downer, the third member of the constitutional drafting committee
with Barton and O'Connor, was equally determined that the American
model of judicial review should be followed in Australia. "We should
make our Supreme Court so strong and powerful", he said, "that no
Government will be able to set the Constitution at defiance owing to
the presence of a majority in either House, whereby an authority would
be obtained that was never intended by the founders of the Constitution."65
We must be careful, however, not to exaggerate the difference
between the majority opinion as formulated by the drafting committee
members Barton, O'Connor and Downer along with judiciary committee
members Symon, Wise and Glynn on the one hand, and the view of
Isaacs and Higgins on the other. While the majority were persuaded by
the dominating influence of the American Supreme Court, Isaacs and
Higgins preferred a slightly weaker court along more traditional English
lines. This ,vas a difference in preferred style and scope, not in the
intended function of judicial review. For example, even Higgins
admitted the need for a strong and independent court "especially as it
has to decide between the States and the Federation and upon encroachments by the Federation upon the States".66
Despite these differences over judicial style and the degree of independence of the court from the legislative branch, all the Convention
leaders came out strongly in favour of judicial review. In order that that
function could be properly performed, and they saw it as necessary to
the federal system, they structured their court accordingly. It was
entrenched into' the C'onstitution and the tenure of judges was
guaranteed. Constituting such a powerful court, and investing it with
the key role of arbitration of federal disputes and keeping each level of
government within its appointed powers, was, for the most part, an
adoption of the American model.
Id.
Id.
65 Id.
66 Id.
63
64.
952-953.
962.
957.
953.
1979]
Judicial Review in the Australian Federal System
385
Ju,dicial Review Reaffirmed, Melbourne 1898
The Adelaide session had produced a draft Bill but had left many
matters unsettled. There had been serious divisions within the Convention, but now the Bill would be -thoroughly vetted by both Houses of
Parliament in each of the Colonies. This was the occasion for every
would-be constitutional drafter to have his day and the last chance for
such anti-federalist chambers as the New South Wales Legislative
Council to indulge in a spoiling campaign. The Colonial Premiers
hurried off to England to attend the Diamond Jubilee celebrations of
Queen Victoria and a Colonial Conference called by the Secretary of
State for the Colonies, Joseph Chamberlain. They were mercifully
absent during the public debate on the constitutional Bill for which
they were jointly responsible. In this period the British Colonial Office
was also busy. Chamberlain lectured the Premiers on the importance
of retaining Privy Council appeals in private law cases while his office
prepared schedules of detailed criticisms and suggested improvements
to the draft Bill. These were discreetly passed on via Reid to Barton
and a few others in the Convention!"
After a short Sydney session in September of 1897, the Convention
adjourned to Melbourne for the longest and final session in January
1898. The Sydney and Melbourne sessions were occupied with settling
all outstanding matters and disposing of the various suggested amendments from the Colonial Parliaments. There was necessarily much
attention to fine detail.
The sections on the court were considered at Melbourne. There was
no change to the basic view of a powerful and independent court
exercising judicial review over both State and federal legislation. The
debate on the court was reopened, however, to consider diverse sets of
suggested amendments from IColonial Legislatures. In the event, the
minimum size of the court was reduced after a narrow vote to a chief
justice and two justices. A penny-pinching scheme from South Australia
to staff the court with State C'hief Justices on a part-time basis, surprisingly supported by Glynn and Kingston who had championed the court's
independence at Adelaide, was defeated. The question of allowing
appeals to the Privy Council in private law cases was reopened. Despite
the beefing up of the minority position by Chamberlain's considerable
weight-all Premiers except the radical Kingston spoke and voted for
allowing such appeals-the Adelaide clauses were upheld by a substantial
majority.
Again, as in Adelaide, the debates are more significant for revealing
the thinking of Convention leaders on the general role of the court
rather than for the substance of the disputed details. In the context of
finalising the judiciary clauses, the Convention reaffirmed its commitment to judicial review by a strong and independent court. This was
67
La Nauze, Ope cit. 170-176.
386
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eloquently formulated by such leading delegates as Barton, O'Connor,
Symon, Downer, Isaacs and Higgins, a group that included four of the
five early Justices of the future High Court.
The debate over the Glynn-Kingston amendment to staff the High
Court with State Supreme Court Chief Justices on a part-time basis is
interesting because it raised the issue of political bias in the Court. The
delegates were rather coy about broaching this delicate issue because a
court of law was traditionally above such suspicions. With masterly
circumlocution, B1arton raised the issue. Such an expedient would, he
said, "lead to the suspicion that the Chief Justices chosen from the
various states were intended to be in some sort of way the representatives
of provincial interests, and that it was not intended that the court in its
impartiality should be representative of the Commonwealth as distinct
from the provinces".68 Symon, an outspoken and forthright man, put
the matter more bluntly and claimed that State-appointed judges would
act as State partisans.69
Such charges of State partisanship could be easily turned around as
they were by Kingston immediately afterwards. In this instance the
roles were reversed with the federalists now playing coy about the
possibility of federally-appointed judges having a bias-or as one delegate
suggested, an "unconscious bias"-in favour of the federal government.'o
The Australian founders were generally reluctant to dwell on the
political character of judicial review, but it was sporadically aired. The
matter was taken up by O'Connor who sharply distinguished between
the accustomed legal role of judges and the novel political role that was
to be given to the fed~ral court. O'Connor stressed that State judges
were not concerned with political questions whereas federal judges
might at any time have to decide "a question which may become a
matter of burning political moment-a question of the validity of a law
which may affect very largely the interests of a state and the Commonwealth, and may at any time become a matter of heated controversy
between a state and the Commonwealth" :11
The general political character of the court's role was very much to
the fore when the amendment reducing the minimum size of the court
from five to three was debated. The danger of manipulating the court
through controlling appointments was discussed. O'Connor stated that
the main danger would come not from outright packing which could
attract popular disapproval, but from the less blatant strategy of letting
numbers dwindle. Therefore he insisted on specifying a reasonable
minimum size for the court.'2 Isaacs claimed that appointments to the
68 Federal Convention Debates (1898) Vol. 1, 269.
68ld.270.
7old.272.
11ld.356.
"Id.286.
1979]
Judicial Review in the Australian, Federal System
387
American Supreme Court had been used as a means of amending the
Constitution. He asserted that in America the great judges of the
Supreme Court had been as influential in shaping the Constitution as
the founding Convention, and he predicted the same would be the case
in Australia:
We are taking infinite trouble to express what we mean in this
Constitution; but as in America so it will be here, that the makers
of the Constitution were not merely the Conventions who sat, and
the states who ratified their conclusions, but the Judges of the
Supreme Court. Marshall, Jay, Storey [sic], and all the rest of the
renowned Judges who have pronounced on the Constitution, have
had just as much to do in shaping it as the men who sat in the
original Conventions.'73
The court would have to decide "vast issues" involving the very existence
of States, their taxing powers and their rights over rivers and territories.
Higgins took a different tack that stressed the particular vulnerability
of a federal court in the Australian context of responsible cabinet
government. In such a system, he claimed, the executive was "the
creature of the Legislature" and together they would have "every
temptation to so mould the character of the High Court as to get it to
adopt their views".14 Consequently, he argued, it was even more
important here than in America to constitute a strong and permanent
court. O'n this occasion the finer differences between Isaacs and Higgins
and the other Convention leaders were not apparent.
Symon's criticism of the constitutional jurisprudence of the Judicial
Committee of the Privy Council was also to the point. The Privy
Council's narrow legalistic approach was unsuitable for a constitutional
court, claimed Symon. ". . . they are guided by a more rigid adherence
to what is literal, as though they were interpreting simply an Act of
Parliament, rather than by a regard for those great constitutional
principles which throw light upon and assist in the efficient interpretation
of a Constitution."?6 Symon approvingly quoted Bryce's eulogy of
Marshall and his praise for Marshall's broad constitutional jurisprudence
which had given the American Constitution an admirable flexibility and
capacity for growth from the beginning. Bryce had contrasted with this
the Privy Council's unsatisfactory "spirit of strictness and literality" in
interpreting the Canadian British North America Act. It was well
understood by the Australian constitution-makers that judicial review
was not simply a legal function.
Judicial review was so fundamental a part of the founders' intention
and design that the judiciary sections of the Constitution cannot be
fully understood without acknowledging the fact. Furthermore, the
'13Id.283.
"4Id.279.
"OId.344.
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[VOLUME
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founders considered that a strong court exercising judicial review of
legislative acts was an integral and necessary part of the federal system
that they were instituting. The federal system entailed allocating specific
national powers to the federal government and making it supreme in
those areas, while at the same time restricting it to those areas. Therefore, some independent arbitrator was required. That arbitrator was to
be the federal court which was constituted in such a way as to equip it
for the role. In carrying out such a role, the High Court was expected
to apply and develop the Constitution in an innovative and creative
fashion. Despite the lack of a formal statement about judicial review in
the text, the evidence from the federation debates is overwhelming. I
have presented some of that evidence and will sum up the founders'
expectation for the High Court in the eloquent formulation of the
distinguished constitutional draftsman, John Downer.
[Federal judges] will have the greatest part in forming this Commonwealth; because honorable members must not forget that,
although we form it in form, they form it, to a large extent, in
substance. With them rest the vast powers of judicial decision, in
saying what are the relative functions of the Commonwealth and
of the states. With them rest the interpretation of intentions which
we may have in our minds, but which have not occurred to us at
the present time. With them rests the obligation of finding out
principles which are in the minds of this Convention in framing
this Bill and applying them to cases which have never occurred
before, and which are very little thought of by anyone of us. With
this Supreme Court, particularly in the earlier days of the Commonwealth, rests practically the establishment on a permanent basis
of the Constitution, because with them we leave it not to merely
judicially assert the principles which we have undoubtedly asserted,
but with them rests the application of those principles, and the
discovery as to where the principles are applicable and where they
are not. As was felt in America, and in every Federation which has
had any permanence, there comes the necessity of a tribunal to
stand between the states and the Commonwealth, of such dignity
and held in such esteem, so free from all possibilities of influence
or corruption that the general people of the Commonwealth will
recognise that the jurisdiction has been well placed, and must be
properly exercised.'l6
The Rivers Question: A Test Case for Judicial Review
The Australian founders considered judicial review in two main parts
of the federation debates: generally in the discussion of the judiciary
clauses, and as a specific solution to the contentious rivers question. The
rivers question was immensely important in the fOt;1nding Conventions
-at t~e Melbou~ne session alone it occupied two weeks of prime
convention time and took up over 400 double column pages of the
761d.275.
1979]
Judicial Review"in the A'ustralian Federal System
389
official record. The matter is of no consequence today since railways
replaced river steamers within a decade, an outcome predicted by
Barton in convention and urged as a reason for omitting mention of
river navigation from the Constitution and cutting short the debate.'Z'7
Moreover, a River Murray Waters Agreement regarding water usage
was signed by the Commonwealth Government and the three interested
States in 1914. In this respect La Nauze's representation of the protracted debate as "much ado about nothing" is quite valid. 78 This dead
issue is resurrected here because it provides an excellent case study on
the intended role of judicial review in the federal system.
In dispute was control of dry Australia's single great river system, the
Murray-Darling, with catchments spreading from monsoonal Queensland through western New South Wales to the snow covered Australian
Alps in the south. New South Wales and to a lesser extent Victoria
were beginning to undertake extensive irrigation schemes and were
concerned to maintain State water rights. South Australia, through
which all these waters flowed via the Murray to the southern ocean,
was the centre of the river steamer trade which tapped the rich rural
markets of New South Wales and Victoria. The South Australian
delegates were concerned with guaranteeing this trade by ensuring
navigability of the Murray and, if possible, the Darling. All the elements
of a classic federal dispute were present. Interstate trade and commerce
were federal matters that extended to river navigation. Water conservation and irrigation came under State property and riparian rights.
While navigation required maintenance of water levels and waterways,
irrigation implied using water and constructing conservation and flood
control works across rivers. South Australia pushed for a specific
federal power over rivers to protect its interstate navigation; New
South Wales was equally stubborn in insisting on entrenching State
water rights.
The Sydney Convention of 1891 raised the matter but left it
unresolved: as Quick and Garran aptly put it, "discussion showed that
the question was too difficult to be dealt with off-hand" ."9 The lines of
battle were more firmly drawn at the 1897 Adelaide session of the
second Convention when various formulations were tried, but none
accepted as satisfactory. The third and final Melbourne session of the
1897-1898 Convention had to resolve all outstanding points, not least
among which was the rivers question.
At the very beginning O'Connor, who was backed up by Barton, set
out what was to be finally accepted: that federal control over river
navigation was sufficiently protected in the trade and commerce clause. 8o
71Id. 601-602.
78 La Nauze, Ope cit. 211.
79 Quick and Garran, Ope cit. 138.
80 Constitution s. 51 (i).
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O'Connor explained the American law at length and predicted that it
was "only reasonable to suppose that our Judges in interpreting our
Constitution will be guided very much by the same principles".81 In
other words, the court would resolve particular disputes between
navigation rights that were incidental to trade and commerce and water
rights that remained under State jurisdiction. This American solution
of judicial review was not acceptable either to the South Australian or
New South Wales partisans at this point. The New South Wales Premier,
George Reid, accused the South Australians of "trying to federalize us"
for their own benefit.82
After the first week of threshing about over "amendments innumerable", Convention leader Barton secured a short respite while the
delegates from the interested Colonies discussed the matter privately.83
Since they could not agree, the rivers question came back for a second
full week of debate. In the meantime the judiciary clauses of the
Constitution had been finalised and delegates were in a better position
to appreciate the O'Connor-Barton proposal for leaving the whole
matter to the court to sort out. O'Connor restated the court solution as
the usimplest and most statesmanlike way" of solving the problem. But
O'Connor alarmed many delegates when he spelt out the broad political
role of the court: it would decide both the merits of a particular case
and "absolutely and definitely the rights and the principles upon which
the decision should proceed".84
Many delegates were opposed to such an extensive scope for judicial
review. They had agreed to a powerful American-style court in theory
but balked at leaving it with such wide powers of decision when it
came down to a practical issue. Downer had recommended that in
"making a new Constitution, we should place our meaning in plain and
unmistakable words".80 Reid said he was prepared to "risk legal decisions
in regard to what I am giving, ... [but] always so long as the absolute
possession of these waters by New South Wales is made clear"-at
which point honourable members laughed, to Reid's consternation. 86
Glynn from South Australia wanted to define navigability so as to put
the matter beyond doubt: he was "not going to let the Federal Judiciary
be the legislators" .87 Similarly, Isaacs wanted to spell out the meaning
of navigability and have it entrenched in the Constitution lest an
Australian court follow English rather than American precedents and
define navigability in terms of tidal flow. 88 This was rather a laboured
81 Federal Convention Debates (1898) Vol. 1, 66.
82Id.84.
83 Quick and Garran, Ope cit. 194-196.
84 Federal Convention Debates (1898) Vol. 1, 388. See also Barton's speeches,
ide 409, 594.
80 Id. 113.
MId. 442.
81Id. 614, 562-564.
88Id.426.
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Judicial Review in, the Australian Federal System
391
and pedantic view, but it does show the extent to which even leading
delegates were chary of judicial review.
Higgins took a different tack and insisted that the navigation-irrigation
controversy be left with the federal parliament. It was a political rather
than a legal question and would necessitate new policies as knowledge
and conditions changed. Therefore it ought to be left with parliament
and not the court. 89 Finally, when all attempts to spell out a specific
federal power over navigation had failed, Higgins sided with B'arton
and O'Connor. His summing up of the outcome of the debate and the
judicial review solution caught the spirit of many delegates:
As we cannot agree upon an amendment that will secure to South
Australia, and I may say to Australia, the federal control of this
river system we ought to stop . . . and . . . allow the glorious
uncertainty of the construction of the law to operate on the
[trade and commerce clause].oo
The final outcome, and for my purposes the. significance of this large
chunk of federation debates, was that judicial review was adopted as a
means of resolving, or at least bypassing, this otherwise intractable
problem. River navigation was not specified as a separate federal head
of power because it was considered to be incidental to, and implied by,
the federal commerce power. Just to be sure, however, it was spelt out
in section 98 that the commerce power did extend to navigation and
shipping. New South Wales carried its insistence into a special clause,
section 100, specifying that the federal commerce power did not abridge
the right of a State to use of its rivers for irrigation, but only after the
qualifying word "reasonable" had been added.
In effect the matter was left to the court to resolve in the future as
specific disputes arose. As has been noted already, this potentially rich
field for litigation was neutered almost immediately because railways
replaced river steamers. The important point, however, is that the
difficult question had already been resolved in principle by the Convention. The solution was judicial review.
The Australian founders were forced to realise that they could not
resolve the rivers question in advance through specific formulations.
In the first place they could not agree. In the second place the subject
was too extensive and abstract, and they lacked adequate information.
Furthermore, they were forced by the strong claims of the senior State
of New South Wales to respect State rights that were not essential to a
federal union. That ruled out the possibility of an overarching federal
power to formulate river policy and balance navigation against irrigation
rights. The federal solution of national sovereignty over navigation and
State sovereignty over irrigation at first appeared to most delegates to
be no solution at all since navigation and irrigation were but two
891d. 510.
80 Id.
573.
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conflicting aspects of the one issue. Leaving the matter for the court
to sort out under a broad commerce clause jurisdiction was enthusiastically promoted by a few, but only reluctantly accepted by the Convention
as a whole after exhaustive debate proved no other solution was forthcoming. The rivers debate shows the Australian founders finally and,
for the most part, only grudgingly adopted judicial review as a practical,
federal solution to the rivers question. But when they did so it was with
full knowledge of what it entailed. This elaborate test case shows how
judicial review was intended to work as an essential part of the
Constitution.
Judicial Review: An Integral Part of the Federal Structure
The Australian founders laboriously thrashed out the issue of judicial
review in the federation Conventions and adopted it as the primary
function of their federal court. Those who designed Australia's federal
Constitution copied the great American model and continuously drew
upon America's long federal experience. In Sir O'wen Dixon's words,
The framers of our own federal Commonwealth Constitution ...
found the American instrument of government an incomparable
model. They could not escape from its fascination. Its contemplation damped the smouldering fires of their originality.91
To appreciate fully the theory of federalism and the function of
judicial review in such a system, we have to go back to the American
constitution-makers since federalism in its modem form is an American
invention. The American founders were acutely aware of the fragility
of the old federal form because that was the basis of the Articles of
Confederation under which they, had fought the War of Independence.
In such a system central authority tended to be ineffectual. As Professor
Martin Diamond has carefully documented, a federation in the old
sense was a confederation or league of societies in which the central
government acted not on the individual citizens but on the constituent
social units.92 By way of contrast a national government acted directly
on the citizens. The American constitution was, in Madison's summing
up in Federalist 39, '~in strictness, neither a national nor a federal
Constitution, but a composition of both". This fundamental innovation
of grafting national powers on to the old form of federal alliance and
thus making the individ~al a citizen of the union as well as a citizen
of his own State was well appreciated by the American founding
generation. It was praised by its supporters as overcoming the basic
weakness of ineffectual central control and a tendency to disintegration
that characterised the traditional federal form. os It was likewise blamed
Dixon, "The Law and the Constitution" in Jesting Pilate 38, 44.
Diamond, "The Federalist's View of Federalism" in Benson (ed.), Essays in
Federalism (1961) 21. '
98 For example, Alexis de Tocqueville, Democracy in America (1835) (New
York: Vintage Books, 1945) i, 162-165. De Tbcqueville calls this ~'a wholly novel
theory, which may be considered as a great discovery in modern political science"
162.
91
92
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Judicial Review in the Australian Federal System
393
by critics of the Constitution such as Luther Martin, the Maryland
Attorney-General and champion of a loose confederation of autonomous
states, as "a system neither wholly federal, nor wholly national-but a
strange hotch-potch of both".94
The Americans created a new form of government by dividing
powers between two levels of government and making each sovereign
within its appointed sphere. Judicial review, combined with the elaborate
system of checks and balances built into the federal government,
became the practical means of keeping each level of government to its
constitutionally defined limits. Influential Americans such as James
Madison had originally favoured a central government power of veto
over State legislation to ensure it did not infringe upon the federal
domain. This was rejected by others such as Jefferson as a proposal "to
mend a small hole by covering the whole garment". Jefferson proposed
instead the alternative of judicial review: "Would not an appeal from
the state judicatures to a federal court, in all cases where the act of
Confederation controuled [sic] the question, be as effectual a remedy,
and exactly conlmensurate to the defect."95 Jefferson was writing to
Madison from Paris in 1787. The same solution emerged at the
Philadelphia Convention which was drafting the American Constitution
at the same time.
The Randolph Resolutions that were probably drafted by Madison
and provided the focus for discussion specified the paramountcy of
national legislation in areas of national jurisdiction. The national
legislature was empowered to "negative all laws passed by the several
States, contravening in the opinion of the National Legislature the
articles of Union".96 After considerable debate this was rejected as too
serious a threat to the independence of the States, and the supremacy
clause, Article VI section ii, was adopted. This simply stated that the
Constitution was the supreme law of the land and would take precedence
over State laws. It was not stated that the Court would give practical
substance to this clause by exercising judicial review but that was
suggested by some during the debate. As one delegate pointed out,
"A law that ought to be negatived will be set aside in the Judiciary
department. "97
Although the Americans were rather tentative about defining judicial
review, it seems that many intended it to be the mechanism for resolving
jurisdictional disputes between two levels of government each· of which
94 Reply to the Landholder, 19 March 1788, in Farrand (ed.), The Records 0/
the Federal Convention of 1787 (rev. ed. 1937) iii, 292.
95 Madison to Jefferson, 17th March 1787, The Papers of James Madison (1975)
ix, 318; and Jefferson to Madison, 20 June 1787, The Papers of Thomas Jefferson
(1955) xi, 480-481. The American historian Charles Warren credits Jefferson with
being the first to suggest judicial review: The Making of the Constitution (1928) 168.
96 Farrand, op. cit. 21. For strong speeches in favour of a national veto power,
see Madison ide i, 164-165, 447 and ii, 27-28.
97 Gouverneur Morris, in Farrand, Ope cit. ii, 28.
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was sovereign in its own powers.- It took the consummate political and
legal skills of John Marshall to establish firmly judicial review as a
practical part of American federalism. Once he had done so, however,
there could be little dispute over its aptness. There is almost a natural
inevitability linking governments of limited powers and judicial review
by the court, at least in countries where the rule of law is given preeminance.99 The classic answer to the question why courts and judges
interpret a constitution was given by K. C. Wheare as follows:
The substance of the matter is that while it is the duty of every
institution established under the authority of a Constitution and
exercising powers granted by a Constitution, to keep within the
limits of those powers, it is the duty of the Courts, from the nature
of their function, to say what these limits are. 1
If the American founders were somewhat tentative about the court's
key federal function of judicial review in 1787, the Australian founders
in the 1890s certainly were not. By that time judicial review was well
established in North America and the Australians took it over as an
integral part of their federal system. Many had considerable difficulty
reconciling themselves to such a broad political role for a court, but
Inglis Clark, Barton and O'Connor gradually led them to accept
American-style judicial review as an important part of federalism. The
Australian founders had a more even-handed view of federalism than
either the Americans or the Canadians who had seen the States as the
main threat to the system. The Australians thought that the Federal
Government was as likely as the States to overstep its defined areas of
jurisdiction. Consequently they considered judicial review by a strong
court as absolutely crucial for keeping both levels of government in
check.
The Canadian founders in 1867 did not consider judicial review
essential to the system they were devising, but as Edmund Barton so
inelegantly put it, theirs was a "mongrel" brand of federalism. The
Canadian system was heavily weighted in favour of the centre. The
explicit powers of reservation and disallowance-of federal legislation
by the Governor-General and of Provincial legislation by the LieutenantGovernor-were practical alternatives to judicial review and the means
of keeping each level of government within its proper limits. 2 The
Canadians did not entrench their Supreme Court in the Constitution
but left it to Parliament's discretion to establish.s They relied on the
98 The strongest case for judicial review was made by Hamilton in Federalist
No.78.
99 Switzerland is an exception. There a law can be submitted to popular referendum to determine its constitutionality on both legislative and popular initiative.
Sawer, Modern Federalism (newed. 1976) 20.
1 Wheare, Modern Constitutions (2nd ed. 1966) 101.
2 British North America Act 1867, ss.55, 56, 90. See also Saywell, The Office
of the Lieutenant-Governor (1957).
3 British North America Act 1867, s. 101. Also MacKinnon, "The Establishment
1979]
Judicial Review in the Australian Federal System
395
Privy Council as a final appellate court and it remained as such until
1949. As the forces of regionalism redressed the balance in favour of
the Provinces and reservation and disallowance fell into disuse, the
Court became an integral part of the Canadian system. The Privy
Council and then the Canadian Supreme Court became indispensable
parts of Canadian federalism. Professor Mallory has described the
process as follows:
[The Canadian Constitution] began as-at best-quasi-federal and
became more and more truly federal by a process of constitutional
evolution.... While it was the forces of economic, political, and
ideological change which turned the Canadian State into a
"classical" federal system on the American model, it was the
courts which confirmed this change by giving it authoritative
sanction.4
Thus judicial review has become an integral part of the Canadian
federation as well as of the American and the Australian.
Those who would abolish the court's role in constitutional adjudication have to propose some alternative mechanism for settling jurisdictional disputes between the two levels of government. The Canadian
constitutional scholar, Paul Weiler, has recently advocated the abolition
of judicial review. Weiler claims that there is no necessity for judicial
review "even though federalism by its very nature involves the creation
of limited legislative powers".5 He claims that "a federal system is
precisely the kind of relationship for which an external umpire may not
be necessary and in which the better technique for managing conflict
is continual negotiation and political compromise".6 Weiler is concerned
that judicial review is essentially unprincipled-he charges the Canadian
Supreme Court with deciding constitutional questions on the basis of
rules it makes up as it goes along-and that a court is singularly
unsuitable for resolving the "very complicated political and economic
conflicts which are the 'stuff' of constitutional adjudication"." Weiler's
critique of judicial review highlights many of the problems associated
with this somewhat incongruous institution whereby a court of law
settles great questions of state, but he goes too far. Judicial review
need not be as unprincipled as he claims since the constitution provides
a basic order against which conflicting claims can be weighed and to
which new developments can be fitted. Of course there is a special
of the Supreme Court of Canada", in Lederman (ed.), The Courts and the Canadian
Constitution ( 1964); and Laskin, "The Role and Functions of Final Appellate
Courts: The Supreme Court of Canada" (1975) 52 Canadian Bar Review 469.
4 Mallory, "Constraints on Courts as Agencies of Constitutional Change: The
Canadian Case" [1977] Public Law 406, 409.
; Weiler, In the Last Resort: A Critical Study of the Supreme Court of Canada
(1974) 165.
6Id.175.
., Id. 164.
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problem for the Canadian Court since the original centralist division
of powers does not fit the strongly regionalised and decentralised nation
that Canada has become.
Weiler proposed political negotiation and compromise as an alternative to judicial review by the court, but what about those hard cases
where neither government will compromise sufficiently to allow a
negotiated settlement? Weiler acknowledges the problem and proposes
the following alternative:
There should be one easily applicable rule, singling out one jurisdiction's legislation as dominant. There seems also no doubt that,
if such is the character of the rule, the dominant jurisdiction must
be the Dominion Parliament which is responsive to the whole
electorate, including voters in the province whose legislation is
being overridden. 8
That is a rather simple and straightforward alternative to judicial review,
but unlike judicial review it is not a federal solution. Weiler would give
the decision of paramountcy to the federal government, thus making it
judge in its own case. Presumably courts would still have the subsidiary
function of deciding when two laws were inconsistent, but that would
be a considerably reduced role. This alternative was rejected by the
American founders in 1787 as a dangerous threat to the States-as
Jefferson said, it was a patch that covered the whole garment.
Conclusion
The federation debates demonstrate that the Australian founders
created a powerful, American-style court whose prime function was to
interpret the Constitution and apply it in settling federal disputes. They
intended the court to exercise judicial review over both State and
federal legislation and constituted it accordingly. The court was made
strong and independent; it was entrenched directly in the Constitution;
its minimum size was stipulated and the tenure of judges elaborately
safeguarded. Moreover, the intended exercise of judicial review by the
court explains why other parts of the Constitution appear as they do.
The commerce clause was left in very broad terms on the assumption
that the judiciary would interpret and apply it in the future. The
contentious question of reconciling conflicting river navigation and
irrigation claims was left essentially unresolved by the founding Conventions precisely because the court was to handle the matter. Because
the court was to make such important political and economic decisions,
the Australian founders were intent upon making it rather than the
Privy Council the final arbiter in constitutional matters concerning the
division of powers.
By making judicial review an integral part of their federal Conti8Id. 177.
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Judicial Review in the Australian Federal System
397
tution, the Australian founders were working out the structural logic
of the federal system. Dividing powers between two levels of government
and making each sovereign in its appointed sphere required some
mechanism for reconciling conflicting claims and settling disputes that
would inevitably arise. That mechanism had to be independent of
either level of government to ensure the balance of the system. In
adopting American judicial review by a strong court, the Australians
were implement,ing what has now become generally recognised as an
essential part of federalism in Canada as well as in the United States
and Australia.
The Australian federal system was completed when the High Court
was set up by the first Commonwealth Parliament in 1903 and Griffith,
Barton and O'Connor were sworn in as the first justices. Introducing
the Judiciary Bill in 1902, Alfred Deakin, then Attorney-General and
soon to replace B·arton as Prime Minister, reiterated the central role of
the High Court in the Australian federal system. Deakin was restating
the thinking of the founding Conventions when he said:
The Constitution is to be the supreme law, but it is the High Court
which is to determine how far and between what boundaries it is
supreme. The federation is constituted by distribution of powers,
and it is this court which decides the orbit and boundary of every
power. Consequently, when we say that there are three fundamental conditions involved in federation, we really mean that
there is one which is more essential than the others-the competent
tribunal which is able to protect the Constitution, and to oversee
its agencies. That body is the High Court. It is properly termed the
"keystone of the federal arch." . . . The High Court exists to
protect the Constitution against assaults. 9
9
ParI Deb. 1902, Vol. 8, 10967.